Batson claim in Pennsylvania

2023When a defendant does not preserve a Batson challenge before the trial court, he may only obtain relief “through a derivative claim of ineffective assistance of counsel.” Commonwealth v. Uderra, 862 A.2d 74, 86 (Pa. 2004) (citing Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999)). -9- J-S26021-23 In such cases, a post-conviction petitioner “is not entitled the benefit of Batson’s burden-shifting formula, but instead, bears the burden in the first instance and throughout of establishing actual, purposeful discrimination.” Id. (citing McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir. 1996),

2023When a defendant does not preserve a Batson challenge before the trial court, he may only obtain relief “through a derivative claim of ineffective assistance of counsel.” Commonwealth v. Uderra, 862 A.2d 74, 86 (Pa. 2004) (citing Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999)). -9- J-S26021-23 In such cases, a post-conviction petitioner “is not entitled the benefit of Batson’s burden-shifting formula, but instead, bears the burden in the first instance and throughout of establishing actual, purposeful discrimination.” Id. (citing McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir. 1996),

2026See Edwards, 177 A.3d at 971 (stating that, when a defendant makes a Batson challenge during jury selection, he/she must first “make a prima facie showing that the circumstances give rise to an inference that the prosecutor struck one or more prospective jurors on account of race”).

2023When reviewing an issue involving a Batson challenge, we examine “whether the trial court’s legal conclusions are correct and whether its factual - 12 - J-S13027-23 findings are clearly erroneous.” Commonwealth v. Edwards, 177 A.3d 963, 970 (Pa. Super. 2018).

2023See Commonwealth v. Spence, 627 A.2d 1176, 1182 (Pa. 1993) (holding that an appellant's failure to make a record for review of his Batson challenge prevents the Court from making a determination as to whether the trial court erred in failing to find aprimafacie case under Batson). 6 Here, defendant has failed to proffer any evidence that could demonstrate actual, purposeful discrimination.

2019In order to lay the groundwork for a successful Batson challenge appeal that.is premised upon a primafacie case of racial discrimination having occurred during voir dire, defense counsel must make a record of the following: J. the race or gender of all the venirepersons in the jury pools; 2 .. the race or gender of all venirepersons remaining after challenges for cause; 3. the race or gender of those removed by the prosecutor.and 4. the race or gender ofthe.jurors who served and the gender of jurors acceptable by the Commonwealth who were stricken by the defense. 12 .................. ,., _, -

2021Commonwealth v. Cook, 952 A.2d 594, 602 (Pa. 2008) (citing Batson, 476 U.S. at 96 ) (internal alterations omitted).7 While an inference of discrimination may arise from a pattern of strikes against minorities or the prosecutor’s questioning and statements during voir dire, see Commonwealth v. Uderra, 862 A.2d 74, 84 (Pa. 2004), “[t]he use of a peremptory challenge on a single person of color without more is insufficient to establish a Batson violation.” Commonwealth v. Simmons, 662 A.2d 621, 631 (Pa. 1995).

2021Commonwealth v. Cook, 952 A.2d 594, 602 (Pa. 2008) (citing Batson, 476 U.S. at 96 ) (internal alterations omitted).7 While an inference of discrimination may arise from a pattern of strikes against minorities or the prosecutor’s questioning and statements during voir dire, see Commonwealth v. Uderra, 862 A.2d 74, 84 (Pa. 2004), “[t]he use of a peremptory challenge on a single person of color without more is insufficient to establish a Batson violation.” Commonwealth v. Simmons, 662 A.2d 621, 631 (Pa. 1995).

2021Commonwealth v. Cook, 952 A.2d 594, 602 (Pa. 2008) (citing Batson, 476 U.S. at 96 ) (internal alterations omitted).7 While an inference of discrimination may arise from a pattern of strikes against minorities or the prosecutor’s questioning and statements during voir dire, see Commonwealth v. Uderra, 862 A.2d 74, 84 (Pa. 2004), “[t]he use of a peremptory challenge on a single person of color without more is insufficient to establish a Batson violation.” Commonwealth v. Simmons, 662 A.2d 621, 631 (Pa. 1995).

2021Commonwealth v. Cook, 952 A.2d 594, 602 (Pa. 2008) (citing Batson, 476 U.S. at 96 ) (internal alterations omitted).7 While an inference of discrimination may arise from a pattern of strikes against minorities or the prosecutor’s questioning and statements during voir dire, see Commonwealth v. Uderra, 862 A.2d 74, 84 (Pa. 2004), “[t]he use of a peremptory challenge on a single person of color without more is insufficient to establish a Batson violation.” Commonwealth v. Simmons, 662 A.2d 621, 631 (Pa. 1995).

2019To satisfy its obligations during the second part of the Batson inquiry, the Commonwealth need not provide explanations that are "persuasive or even plausible." Commonwealth v. Roney, 79 A.3d 595, 619 (Pa. 2013) (quoting Purkett v. Elem, 514 U.S. 765, 767-768 (1995)).

2019To satisfy its obligations during the second part of the Batson inquiry, the Commonwealth need not provide explanations that are "persuasive or even plausible." Commonwealth v. Roney, 79 A.3d 595, 619 (Pa. 2013) (quoting Purkett v. Elem, 514 U.S. 765, 767-768 (1995)).

2026Batson claim In his eighth issue presented Appellant argues that the Commonwealth violated Batson v. Kentucky, 476 U.S. 79 (1986).

2023Herein, Appellant states four issues for our review: 1.) Did the [PCRA] court err in denying Appellant’s second PCRA petition as untimely presented … when Appellant’s PCRA [petition] was actually still within the one[-]year deadline required by 42 Pa.C.S.§ 9545(b)(1)? 2.) Was initial PCRA counsel … ineffective for failing to raise trial counsel’s refusal to present the Batson [v. Kentucky, 476 U.S. 79 (1986),] claim during pre-trial [motions] and during direct review after Appellant raised a motion for change of venue[,] presenting the Batson claim to the court? 3.) Was initial PCRA counsel in

2025Furthermore, “[a] criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same races.” Id. (quoting Powers v. Ohio, 499 U. S. 400, 402 (1991)).[10] In the instant case, [Appellant’s] contention pertains to two specific jurors, numbers 307 and 385, that were the subject of a Batson challenge by [t]rial [c]ounsel.

2025Furthermore, “[a] criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same races.” Id. (quoting Powers v. Ohio, 499 U. S. 400, 402 (1991)).[10] In the instant case, [Appellant’s] contention pertains to two specific jurors, numbers 307 and 385, that were the subject of a Batson challenge by [t]rial [c]ounsel.

2022To the contrary, the court held, the Superior Court addressed the precise issue in Basemore II, supra, and held that a Batson violation, “without more,” does 8 As referenced herein, Commonwealth v. Basemore, 744 A.2d 717 (Pa. 2000) (“Basemore I”), involved the direct capital appeal of William Basemore, decided by this Court in 2000, relating to Basemore’s 1995 PCRA petition, which alleged a Batson violation.

2022To the contrary, the court held, the Superior Court addressed the precise issue in Basemore II, supra, and held that a Batson violation, “without more,” does 8 As referenced herein, Commonwealth v. Basemore, 744 A.2d 717 (Pa. 2000) (“Basemore I”), involved the direct capital appeal of William Basemore, decided by this Court in 2000, relating to Basemore’s 1995 PCRA petition, which alleged a Batson violation.

2024A petitioner raising a Batson claim under the PCRA must prove there was “actual, purposeful discrimination by a preponderance of the evidence,” and “[a] finding by the trial court as to an absence of discriminatory intent must be given great deference on appeal.” Commonwealth v. Sepulveda, 55 A.3d 1108, 1132 (Pa. 2012).

2024Furthermore, our Supreme Court has continually recognized that to prove a Batson claim, the moving party must “provide a full and complete record demonstrating the alleged violation.” Commonwealth v. Sepulveda, 55 A.3d 1108 , 1132 n.23 (Pa. 2012) (citations omitted).

2016Id. at 1142-43 (citations and quotation marks omitted). -9- J-S39045-16 Instantly, Appellant does not indicate where in the record his Batson challenge is preserved.

2011Significant to the instant case, however, in cases where no Batson challenge was raised during the voir dire process, “a post-conviction petitioner is not entitled to the benefit of Batson’s burden-shifting formula, but instead, bears the burden in the first instance and throughout of establishing actual, purposeful discrimination by a preponderance of the evidence.” Ligons, 971 A.2d at 1142 (citing Commonwealth v. Uderra, 580 Pa. 492 , 862 A.2d 74, 86 (2004)).

2023The third and critical factor in a Batson analysis involves determining if the defense “carried its burden of proving purposeful discrimination.” Watkins, 108 A.3d at 708 (citation omitted).

2023The third and critical factor in a Batson analysis involves determining if the defense “carried its burden of proving purposeful discrimination.” Watkins, 108 A.3d at 708 (citation omitted).

2021See Commonwealth v. Roney, 79 A.3d 595, 619 (Pa. 2013) (citing Commonwealth v. Spotz, 896 A.2d 1191 , 1213- 1214 (in evaluating a Batson claim alleging gender discrimination, a court may look to whether the prosecutor made any questionable remarks during jury selection).

2021See Commonwealth v. Roney, 79 A.3d 595, 619 (Pa. 2013) (citing Commonwealth v. Spotz, 896 A.2d 1191 , 1213- 1214 (in evaluating a Batson claim alleging gender discrimination, a court may look to whether the prosecutor made any questionable remarks during jury selection).

2018Rather, our Supreme Court has continually recognized that a moving party must preserve a “full and complete record of the asserted Batson violation, as it would otherwise be impossible to conduct meaningful appellate review of the motivations of prosecutors in individual cases without such a record.” Commonwealth v. Fletcher, 580 Pa. 403 , 861 A.2d 898, 909 (2004) (citation omitted), cert. denied, Fletcher v. Pennsylvania, 547 U.S. 1041 , 126 S.Ct. 1617 , 164 L.Ed.2d 336 (2006).

2018Rather, our Supreme Court has continually recognized that a moving party must preserve a “full and complete record of the asserted Batson violation, as it would otherwise be impossible to conduct meaningful appellate review of the motivations of prosecutors in individual cases without such a record.” Commonwealth v. Fletcher, 580 Pa. 403 , 861 A.2d 898, 909 (2004) (citation omitted), cert. denied, Fletcher v. Pennsylvania, 547 U.S. 1041 , 126 S.Ct. 1617 , 164 L.Ed.2d 336 (2006).

2018Because I disagree with the learned Majority’s analysis of the Batson test, its rejection of the trial court’s factual determinations, and find other of our precedent persuasive, I respectfully dissent. 2 In Commonwealth v. Harris, 572 Pa. 489 , 817 A.2d 1033 (2002), our Supreme Court recognized: Batson set forth a three-part test for examining a criminal defendant’s claim that a prosecutor exercised peremptory challenges in a racially discriminatory manner: first, the defendant must make a prima facie showing that the circumstances give rise to'an inference that the prosecutor struck one or m

2018Because I disagree with the learned Majority’s analysis of the Batson test, its rejection of the trial court’s factual determinations, and find other of our precedent persuasive, I respectfully dissent. 2 In Commonwealth v. Harris, 572 Pa. 489 , 817 A.2d 1033 (2002), our Supreme Court recognized: Batson set forth a three-part test for examining a criminal defendant’s claim that a prosecutor exercised peremptory challenges in a racially discriminatory manner: first, the defendant must make a prima facie showing that the circumstances give rise to'an inference that the prosecutor struck one or m

2018“It is at this stage that the persuasiveness of the facially-neutral explanation proffered by the Commonwealth is relevant.” Commonwealth v. Towles, 106 A.3d 591, 601 (Pa. 2014) (citation omitted).17 17 The Commonwealth cites Cook and Commonwealth v. Washington, 927 A.2d 586 (Pa. 2007), for the proposition that a Batson claim fails whenever the prosecution states race-neutral reasons for disputed peremptory challenges, even if the proffered explanation lacks persuasive force or plausibility.

2018“It is at this stage that the persuasiveness of the facially-neutral explanation proffered by the Commonwealth is relevant.” Commonwealth v. Towles, 106 A.3d 591, 601 (Pa. 2014) (citation omitted).18 18 The Commonwealth cites Cook and Commonwealth v. Washington, 927 A.2d 586 (Pa. 2007), for the proposition that a Batson claim fails whenever the prosecution states race-neutral reasons for disputed peremptory challenges, even if the proffered explanation lacks persuasive force or plausibility.

2019In order to lay the groundwork for a successful Batson challenge appeal that.is premised upon a primafacie case of racial discrimination having occurred during voir dire, defense counsel must make a record of the following: J. the race or gender of all the venirepersons in the jury pools; 2 .. the race or gender of all venirepersons remaining after challenges for cause; 3. the race or gender of those removed by the prosecutor.and 4. the race or gender ofthe.jurors who served and the gender of jurors acceptable by the Commonwealth who were stricken by the defense. 12 .................. ,., _, -

1995See Commonwealth v. Abu-Jamal, 521 Pa. 188, 195-96 , 555 A.2d 846, 849 (1989), cert. denied, 498 U.S. 881 , 111 S.Ct. 215 , 112 L.Ed.2d 175 (1990) (failure to allege discriminatory use of peremptory challenges during voir dire results in waiver of Batson claim).

2026Further, with respect to the preservation of Batson claims, our Supreme Court has stated an appellant must raise a Batson objection during voir dire in order to “preserve a challenge to the Commonwealth’s use of peremptory strikes.” Commonwealth v. Smith, 17 A.3d 873, 894 (Pa. 2011).

2023A Batson challenge must be raised during voir dire because the trial judge plays a "central role [] in assessing whether the defendant ha[s] established a prima facie case of purposeful discrimination, and, if so, in assessing the credibility of the race-neutral reasons offered by the prosecutor." Commonwealth v. Smith, 17 A.3d 873, 895 (Pa. 2011).

2012We explained that counsel could not be faulted "for failing to raise a Batson objection at trial because Batson did not yet exist." We reasoned, however, that even if counsel could be faulted for failing to anticipate the Batson rule, there were "practical hurdles that would have derailed such an endeavor." Sneed, 899 A.2d at 1075-76 .

2012We explained that counsel could not be faulted "for failing to raise a Batson objection at trial because Batson did not yet exist." We reasoned, however, that even if counsel could be faulted for failing to anticipate the Batson rule, there were "practical hurdles that would have derailed such an endeavor." Sneed, 899 A.2d at 1075-76 .

2026Where -3- J-S01024-26 “defense counsel did not raise or preserve any claim of racial discrimination in jury selection with a contemporaneous Batson objection at trial, we have repeatedly held that the Batson framework does not apply.” Commonwealth v. Hutchinson, 25 A.3d 277, 287 (Pa. 2011).

2026Where -3- J-S01024-26 “defense counsel did not raise or preserve any claim of racial discrimination in jury selection with a contemporaneous Batson objection at trial, we have repeatedly held that the Batson framework does not apply.” Commonwealth v. Hutchinson, 25 A.3d 277, 287 (Pa. 2011).

2021See Commonwealth v. Roney, 79 A.3d 595, 619 (Pa. 2013) (citing Commonwealth v. Spotz, 896 A.2d 1191 , 1213- 1214 (in evaluating a Batson claim alleging gender discrimination, a court may look to whether the prosecutor made any questionable remarks during jury selection).

2021See Commonwealth v. Roney, 79 A.3d 595, 619 (Pa. 2013) (citing Commonwealth v. Spotz, 896 A.2d 1191 , 1213- 1214 (in evaluating a Batson claim alleging gender discrimination, a court may look to whether the prosecutor made any questionable remarks during jury selection).

2025When an appellant has raised a contemporaneous Batson objection during jury selection, he “is entitled to the burden-shifting test set forth in that case: ‘[f]irst, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race[; s]econd, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for his peremptory challenges[; f]inally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.’” Commonwealth v. Rivera, 19

2023In order to demonstrate actual purposeful discrimination, "a defendant raising a Batson Claim must make an adequate record specifically identifying the race of all the venirepersons who had been removed by the prosecution, the race of the jurors who served, or the race of jurors 5 Accordingly, to the extent that defendant may be attempting to make a substantive Batson claim, and not a claim premised upon ineffective assistance of counsel, that claim has been waived. 16 acceptable to the Commonwealth who had been stricken by the defense, since otherwise [the Court] lacks an adequate record upon

2021On the other hand, in Commonwealth v. Sanchez, 36 A.3d 24 (Pa. 2011), the trial court did not address the first prong of the Batson test and focused instead on the second prong.

2021On the other hand, in Commonwealth v. Sanchez, 36 A.3d 24 (Pa. 2011), the trial court did not address the first prong of the Batson test and focused instead on the second prong.

2014With regard to the McMahon contention, we have repeatedly emphasized that the McMahon training tape is not sufficient to establish a Batson violation in a particular case, particularly where, as here, “the prosecutor at an appellant’s trial was someone other than McMahon, and the time of the appellant’s trial was temporally remote from the creation of the videotape.” Commonwealth v. Jones, 597 Pa. 286 , 951 A.2d 294, 305 (2008).

2014With regard to the McMahon contention, we have repeatedly emphasized that the McMahon training tape is not sufficient to establish a Batson violation in a particular case, particularly where, as here, “the prosecutor at an appellant’s trial was someone other than McMahon, and the time of the appellant’s trial was temporally remote from the creation of the videotape.” Commonwealth v. Jones, 597 Pa. 286 , 951 A.2d 294, 305 (2008).

2021Instead, the defendant must preserve a “full and complete record of the asserted Batson violation, as it would otherwise be impossible to conduct meaningful appellate review of the motivations of prosecutors in individual cases without such a record.” Thompson, 106 A.3d at 751-52 .

2021Instead, the defendant must preserve a “full and complete record of the asserted Batson violation, as it would otherwise be impossible to conduct meaningful appellate review of the motivations of prosecutors in individual cases without such a record.” Thompson, 106 A.3d at 751-52 .

2020See Commonwealth v. Hackett, 956 A.2d 978, 985 (Pa. 2008) (rejecting argument that a Batson claim is “unrelated to the reliability of the verdict rendered” and so does not implicate a cognizable constitutional violation under Section 9543(a)(2)(i)); Commonwealth v. Cruz, 851 A.2d 870, 875, 878 (Pa. 2004) (holding relief was “available on collateral review in the particularized circumstances presented” even though the petitioner’s claim he was denied due process and equal protection on direct appeal, on the basis of disparate treatment from his co-defendant, “asserts a breakdown in the appellat

2020See Commonwealth v. Hackett, 956 A.2d 978, 985 (Pa. 2008) (rejecting argument that a Batson claim is “unrelated to the reliability of the verdict rendered” and so does not implicate a cognizable constitutional violation under Section 9543(a)(2)(i)); Commonwealth v. Cruz, 851 A.2d 870, 875, 878 (Pa. 2004) (holding relief was “available on collateral review in the particularized circumstances presented” even though the petitioner’s claim he was denied due process and equal protection on direct appeal, on the basis of disparate treatment from his co-defendant, “asserts a breakdown in the appellat

2011See Ligons, supra at 1145-46 (rejecting the appellant's Batson claim of a "culture of discrimination" based on the McMahon lecture videotape and Sagel lecture notes because there was no connection to the appellant's individual case); Clark, 961 A.2d at 96 (rejecting a Batson claim that was based on the McMahon lecture videotape and Sagel lecture notes and emphasizing that "the evidence offered in a Batson claim must be grounded in the particular facts of the appellant's case"); Marshall, supra at 722 & n. 7 (rejecting the appellant's Batson claim *289 based on the McMahon lecture videotape and

2011See Ligons, supra at 1145-46 (rejecting the appellant's Batson claim of a "culture of discrimination" based on the McMahon lecture videotape and Sagel lecture notes because there was no connection to the appellant's individual case); Clark, 961 A.2d at 96 (rejecting a Batson claim that was based on the McMahon lecture videotape and Sagel lecture notes and emphasizing that "the evidence offered in a Batson claim must be grounded in the particular facts of the appellant's case"); Marshall, supra at 722 & n. 7 (rejecting the appellant's Batson claim *289 based on the McMahon lecture videotape and